Labour law refers to that branch of the law which pertains to unionized workplaces. It is a branch of the law which has taken off even from the solid base of administrative law, and where the rule of law is no longer well grounded; to some, a "good thing";  a necessity given the specialized nature of labour law; but to others sometimes caught within its tentacles, an arbitrary forum where Lady Justice does not have season tickets.

This article reviews the essentials of labour law but also ponders whether the King has no clothes.

Louis Brandeis (1856-1941), the great American jurist and later Justice Brandeis, once wrote:

"Strong, responsible unions are essential to industrial fair play. Without them the labor bargain is wholly one-sided.

"The parties to the labor contract must be nearly equal in strength if justice is to be worked out, and this means that the workers must be organized and that their organizations must be recognized by employers as a condition precedent to industrial peace."

Labour law is that branch of employment law exclusive to unionized workplaces.

strike protesterEmployees can band together and ask for government "certification" to negotiate a blanket employment contract with the employer to bind all members of the group.

Certification makes them a "union" or "collective bargaining unit", so-called because they "bargain" on behalf of a "collective" (the group).

The Industrial Revolution in England (1730 to 1840) brought previously isolated workers to one location, allowing them to "chat" and compare notes on their respective work conditions. Needless to say, they soon realized that what the Three Musketeers had said centuries earlier, applied to them: united we stand, divided we fall.

Unions spooked politicians at first. Unions were made illegal in England in 1799 and some organizers were sentenced to "transportation", a one-way boat trip to a remote colony (such as Australia and Canada).

But the momentum could not be stopped and eventually gained acceptance throughout the industrialized world by 1870.

In the Canadian province of British Columbia, circa 2012, labour law is substantially codified in a Labour Relations Code.

"Trade union" is defined in BC to be a local or provincial:
"… association of employees ... that has as one of its purposes the regulation in BC of relations between employers and employees through collective bargaining … but not an … association of employees that is dominated or influenced by an employer."

Under the BC labour legislation, an employee means a person employed by an employer, and includes a dependent contractor, but does not include a person who, in the board's opinion, performs the functions of a manager or superintendent.

Management is disqualified from belonging to a trade union as they are thought to have too substantial an interest in the employer’s affairs to belong to a "union".

How to start a union?

First, peace of mind: the Code protects employees while she/he engages in Code activities including union organizing.

"A person must not refuse to employ or refuse to continue to employ a person, threaten dismissal of or otherwise threaten a person, discriminate against or threaten to discriminate against a person with respect to employment or a term or condition of employment or membership in a trade union, or intimidate or coerce or impose a pecuniary or other penalty on a person, because of a belief that the person … exercised a right conferred by or under this Code or because the person has participated or is about to participate in a proceeding under this Code."

You need a set percentage of workers to sign up for unionization. What often happens in real life: a disgruntled employee visits an existing union, or an employee is solicited by a union member to organize within the targeted employer.

Some unions have swat teams of trained and dedicated union organizers who are well-versed in the techniques of achieving unionization. Not lost on the unions is that as soon as they get certification, they receive union dues from the employees, deducted at source by the employer.

If a basic percentage of employees expressed an interest in forming a union, the union will normally ask the employer to recognize it. If the employer challenges the union’s ability to get a majority vote re certification, the Board intervenes and supervises the rest of the process.

In BC, the Labour Relations Board (LRB) will ascertain that the applicant-group is cohesive and appropriate as a bargaining unity.

A "representation vote" may then be taken, especially if the employer continues to challenge.

If the union can achieve a majority of employees seeking association, the union may then be certified by the LRB.

The Code says that (at §12):

"A trade union or council of trade unions must not act in a manner that is arbitrary, discriminatory or in bad faith in representing any of the employees in an appropriate bargaining unit...."

Reality Check

"The (Labour Relations) Board will only intervene when the trade union's conduct is blatantly arbitrary or discriminatory or when it can be concluded that the employees affected have not been treated in good faith"!

This peculiar and unnecessary interpretation of §12, and practically impossible standard, comes from the very administrative tribunal responsible for the oversight of unions (Mervin Klaudit BCLRB B85/93).

In practice, it is evident that the LRB means what they say. In maintaining this standard, the LRB has substantially orphaned unionized employees to their unions, in spite of the original wording of the enabling legislation. They will not intervene under almost any circumstances with an errant union, as "bad faith" is a very difficult thing to prove.

Worse, the LRB rarely convenes hearings even if one is asked for, preferring to do its work at the designated Board member's convenience and based on sworn or unsworn submissions, all depriving the litigant of fundamental process rights.

This makes it hard for caring lawyers to do their job.

Eventually, by force of habit encouraged by LRBs, labour lawyers lose their legal bearings and manage cases politically; hence, erosion of the rule of law in labour law.

As such, and generally, labour law in Canada is a definite area where justice and fairness are celebrated on the record, but on the ground, are not worshipped or cherished.

For the record, the system defers to expediency - even over justice - and with expediency comes arbitrary decisions. For example, from my experience:

  • In one case, I felt that the BC Labour Relations Board member might of had a private arbitration practice and possibly clients including the parties in my case. I was never able to find out although, with no credit to my rumblings, the BC LRB later and very quietly adopted a conflict of interest rule; and
  • The LRB will pick and choose from material sent by the parties, none of which need be in sworn form (affidavit), and reconstruct the "facts" from that material in accordance with whatever precedent it feels is most calming and expedient. The decision comes out as a "desk order", with no hearing or any cross examination of unproven allegations of fact.

These difficulties - systematic for administrative tribunals - have been significantly compounded by the judicial deference to the Labor Relations Board which now verges on the ridiculous. 

It is very difficult to succeed in a judicial review of a LRB decision as the standard for review is extraordinary, all at the altar of "deference". This is not lost on the LRB.

To really appreciate the significance of this de facto and de jure standard, one ought to consider this section of the Code:

"A decision ... of the board under this Code ... is final and conclusive and is not open to question or review in a court on any grounds."

When a union negotiates an employment contract for the group it represents, it is called a "collective bargaining agreement".

The Code tweaks contract law by adding an intermediary step to "acceptance" in that the agreement between the leaders of the union and employers is subject to "ratification" by the group by majority vote (and to the employer’s board).

The Code also tweaks the traditional dispute resolution system (i.e. the Court) by excluding the latter’s jurisdiction (except for judicial review), abandoning the parties to administrative tribunals and mandatory arbitration; a standard feature in CBAs.

The equivalent of a "claim" in civil justice becomes, in labour law a "grievance", which is exactly that: a written complaint (grievance) from a union to an employer or vice versa.

Only a union can submit a grievance to the employer. The individual employee is at the mercy of the union in regards to the assertion, defence or even abandonment of her employment rights. Unions do not systematically assign lawyers to review grievances so in many cases, an employee's very livelihood is substantially left to another employee, often with little or no post-secondary education and no training other than a few union courses, on legal rights. At the higher echelons of the union, grievances are traded-off and compromised in the mix of larger issues, with the decision to bring it forward or not often hinging on the ongoing political relationship between the union and the employer and not solely on the rights of the grieved employee. This reality can be a very difficult one for an employee who has been unfairly treated, has submitted a valid grievance,  but can't understand the lack of initiative by their union towards their grievance. As set out above, holding a union to standards of individual representation is near impossible.

If the parties cannot agree on a new CBA, and the old one has expired, the employer can lock-out the employees or the employees can refuse to attend the workplace.

Employees can also "work to rule" during which time they perform only basic tasks required to keep the employer open.

The employees can refuse to work (strike) and while thus on strike, cannot be disciplined other than not being paid, even in they picket, which is to surround the entrance of a employer and encourage patrons and managers to boycott the employer.

Picket lines have no legal basis and are merely PR gestures. But a strong tradition exists not to cross a picket line so they can be powerful tools.

The LRB can be very "paternal" (hands-on) with CBA negotiations, getting involved far beyond the scope of an traditional administrative tribunal.

Example: if a first CBA cannot be negotiated, the LRB can impose one!

The LRB can also appoint a mediator (thus forcing mediation). In labour law, a mediator is sometimes called a "conciliator".

The LRB purports to retain copies of all CBAs negotiated in the Province at http://www.lrb.bc.ca/cas/, thus a good place to see what a CBA looks like.

The Future of Labour Law?

Union membership is in decline.

In an attempt to make CBA’s more adaptive to the rapid pace of change in the modern marketplace, the BC Code (§53) now provides for consultation between management and the Union "to respond and adapt to changes in the economy, to foster the development of work related skills and to promote workplace productivity".